EPO rules own software patents review inadmissible

An unexpected, good result: after more than a year and a half of review (referral G3/08), the EPO’s Enlarged Board of Appeal has declared that the four questions posed were all inadmissible. The patent office is thus does not have the power to decide for itself whether or not software should be patentable.

Outcome

Page 49 says that in order for a referral to be admissible under Article 112(1)(b) EPC, the questions have to either be:

they need to be answered in order to ensure uniform application of the law or they concern points of law of fundamental importance

…or…

two Boards of Appeal have given different decisions on the questions referred.

With this starting point, the review focusses exclusively on finding inconsistencies. It finds none. Case closed as inadmissible.

p83: “Question 1 is therefore not admissible.”

p92: “Thus no divergence in the case law supporting this question [2] has been identified by the referral and the question [2] is therefore not admissible.”

p94: “This question [3] is therefore also inadmissible.”

p96: “Hence the question [4] does not satisfy the requirement for a divergence in the case law and is therefore inadmissible”

p99: conclusion: “The referral of 22 October 2008 of points of law to the Enlarged Board of Appeal by the President of the EPO is inadmissible under Article 112(1)(b) EPC.”

Other highlights

The document is quite readable and provides some concise summaries as well as pointers to key decisions. A very good starting point for anyone who wants to get into the details. Here are some interesting sections:

A uniform understanding of where to draw the dividing line between applications relating to programs for computers as such, which are excluded from patentability under Articles 52(2)(c) and (3) EPC, and applications relating to patentable technical solutions, in the form of CIIs, still cannot be assumed despite considerable convergence in recent court rulings.

EPO spin

So it’s null and void. Useless. Nothing will happen as a result. Spun slightly, you could say the EBoA has not recommended any changes. That would be true, if disingenuous. But the EPO’s spin is jaw dropping: EBoA confirms EPO approach to computer programs.

Info on en.swpat.org

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5 Comments

I’m not sure what’s good about this. Besides, I think the assertion that the decision means “The patent office is thus does not have the power to decide for itself whether or not software should be patentable” is just false. The EBA explicitly determined that the individual (not Enlarged) Boards of Appeal have the final power to make such decisions, until they conflict each other, and then the EBA has jurisdiction.

In summary, the EBoA said that the EPO has been consistent – but they didn’t say if the EPO was consistently wrong or consistently right.

In Europe, no one really knows who’s supposed to be in charge of patent law. If the EBoA said, confidently “It’s us, we’re staffed by competent judges from European countries, we conclude that software should be patentable” – then other institutions (like the European Parliament) would be likely to accept that. On the contrary, the EBoA said:

“…a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting … When judiciary-driven legal development meets its limits, it is time for the legislator to take over.”

That’s what we want. We want the law to be set by the European Parliament, not by the EPO.